Health Reform and Correctional Health Care: How the Affordable Care Act Can Improve the Health of Ex-Offenders and Their Communities

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Introduction I. Prisoners' Right to Health Care II. Health Status of Inmates and Former Prisoners III. The Affordable Care Act and the Health of Ex-Offenders and Their Communities A. Overview of the Affordable Care Act B. The U.S. Supreme Court Decision in the Case of National Federation of Independent Business v. Sebelius C. Effect of the ACA Medicaid Expansion on Inmates and Former Offenders D. Effect of the ACA on Individuals Incarcerated Pending Disposition of Charges E. Additional ACA Provisions That May Positively Affect the Health of Ex-Offenders and Their Communities Conclusion

INTRODUCTION

A few years ago, the United States reached an infamous milestone: estimates of individuals incarcerated in the nation's jails and prisons pegged the number at one in ninety-nine. (1) Within that statistic dwell other macabre figures: on any given day there are more than 2.2 million adults locked up; (2) local jails process nearly thirteen million admissions each year; (3) per capita, the United States incarcerates more people than any other country in the world (4) and imprisons them for significantly longer than most other industrialized countries. (5) However one slices the data, the statistics tell a grim story.

Another story, wrapped inside the generalized statistics of U.S. jail and prison rates, is the unique story of offender health care. Unlike the vast American population not behind bars, individuals inhabiting the nation's jails and prisons enjoy a constitutional right to adequate health care. (6) This right, carved out of the federal Constitution's Eighth Amendment right forbidding cruel and unusual punishment by state actors, amounts to nothing less than an entirely separate system of health care for some of the nation's poorest and most vulnerable people. The underlying structure of correctional health care is unique, as well. In the non-correctional context, American health care is primarily delivered by a patchwork of providers and facilities, delineated by type of care needed: a patient seeks preventive care from her primary care physician in one location, obstetrical care from a specialist in another location, urgent care from a separate clinic, and so on. This is not the case in the correctional setting: the entire spectrum of care is often delivered to prisoners on site. (7) Looked at this way--a system of mandatory health care delivered under one roof designed for a relatively sick population--correctional health care has the potential to be a model in terms of the efficiency and quality of care provided.

Unfortunately, this modeling has yet to come to fruition. In fact, nearly the opposite has been true: prisoner health services historically have been substandard. (8) Even in spite of longstanding reform efforts, (9) unhealthy and unsafe living conditions in American jails and prisons and denials of legitimate requests for health care have been normative and frequently documented. (10) Furthermore, as a result of social factors beyond their control, jails and prisons are regularly boxed into providing care that would not meet the professional standard of health outside a correctional setting. For example, because many non-correctional state-operated treatment centers and hospitals for the mentally ill have been closed over the last couple of decades, correctional facilities are now a centerpiece of the mental health care "system" in the United States, (11) even though they are poorly equipped to treat large-scale mental illness properly and effectively. (12) Similarly, with inadequate substance abuse treatment services available in many communities, judges often purposely funnel arrested substance abusers into jails, knowing that treatment for their condition is mandatory. (13) Although laudatory on one level, this approach leaves correctional administrators and clinicians in a predicament: while they must treat these offenders, they have insufficient resources relative to the influx of offenders whose complex constellation of physical and social conditions demand more sustained treatment than they are able to provide. …